The Criminal Measures IP Directive: Criminalizing the industry

The European Commission has proposed a directive to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.

A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council.

Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our ACTA page.

Commission withholds key study on criminal measures from European Parliament

Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the controversial and contested version. See the second part of the PR.

Carte Blanche Criminal Law

Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).

Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.

Legal Affairs Committee washes hands in innocence

The European Parliament Legal Affairs Committee voted on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?

The Criminal Measures IP Directive: European Commission criminalises the industry

The European Commission has proposed a directive to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.

Commercial infringements

Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market.

Bizarre consequences

By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer.

Superfluous

To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.

Carte blanche

An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche?

No competence

Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the Commission exceeds its competence with this directive.

Conclusion and analysis

The directive has to be rejected:

it is misguided, superfluous and outrageous

the Community lacks legitimacy and competence

If not rejected, member states should take the directive to the European Court of Justice.

A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.

ipred.org

In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out.

The criminal measures are back in the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (DCMEIPR ?). This new directive is often called IPRED 2.